dissenting.
I respectfully dissent. The majority points out that the right to counsel is a constitutional right of fundamental importance, which cannot be waived except by the defendant himself, and that such waiver cannot be established from a silent record. Fitzgerald v. State, 254 Ind. 39, 46-47, 257 N.E.2d 305, 311 (1970). The majority then cites Houston v. State, 553 N.E.2d 117 (Ind.1990), to support its conclusion that Briekert waived his right to counsel merely by his failure to hire an attorney in a timely manner. I cannot agree.
The supreme court in Houston recognized that the waiver of the right to counsel may be established by the defendant’s conduct, provided that the defendant is adequately warned that if he does not comply with the court’s order to obtain counsel, he will be required to proceed pro se. Id. at 118. In that case, the trial court had given the defendant such a warning. Id. Our court recently interpreted Houston in Seniours v. State, 634 N.E.2d 803 (Ind.Ct.App.1994). We explained:
Houston does not stand for the proposition that a defendant’s conduct or passive resistance to the court may give rise to an assumption of waiver in the absence of advisements by the court regarding the consequences of proceeding without an attorney or a presentation of the choice to do so. Houston demands, at the very least, that the record reflect that the court has *497presented, to the defendant the choices available to him with some minimal explanation of their meaning.
Id. at 806 (emphasis added).
Here, the record does not indicate that Brickert was so warned. The majority claims that it was “obvious” under the circumstances that Brickert would be required to proceed pro se if he did not obtain counsel. Op. at 496. I cannot agree with that conclusion. Even where, as here, the defendant attempts to manipulate the judicial process, he is entitled to a clear warning that his dilatory conduct will be treated as an implied request to proceed pro se. In addition to a warning that his conduct will result in pro se representation, the record must reflect a statement explaining the “advantages of representation by counsel and the pitfalls which he might experience if he insisted on self-representation.” Seniours, 634 N.E.2d at 807 (citation omitted).
Further, the majority fails to acknowledge that the facts in Fitzgerald are closely analogous to those in the present case. Fitzgerald., 254 Ind. 39, 257 N.E.2d 305. In Fitzgerald, the trial judge wrote four letters and made two telephone calls to the defendant notifying him of the date of the trial and asking him for the name of his counsel. The judge repeatedly reminded him that it was imperative that his attorney file an appearance as soon as possible. The defendant still appeared at trial without counsel, and the judge then proceeded with the trial. The supreme court found that the absence of counsel was directly attributable to the defendant’s own conduct. Id. at 46, 257 N.E.2d at 311. However, there was no indication that the trial court had ever warned the defendant that he would be required to proceed pro se if he failed to obtain counsel. The supreme court concluded that the defendant did not manifest a desire to waive his right to counsel or to proceed to trial without assistance and reversed his conviction. Id. at 47-49,257 N.E.2d at 311-12.
Here, as in Fitzgerald, the trial court failed to warn the defendant that he would be required to proceed pro se if he failed to obtain counsel. The majority ignores Fitzgerald as binding precedent and concludes that a defendant can forfeit his right to counsel by his conduct alone. The better rule as enunciated by our supreme court is that a defendant can waive his right to counsel by his conduct, but such “waiver by conduct” requires that the defendant first be warned about the consequences of his conduct, including the risks of proceeding pro se. United States v. Goldberg, 67 F.3d 1092, 1099, 1101 (3rd Cir.1995) (citing Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) and Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975)).
Unlike waiver, which requires a knowing and intentional relinquishment of a known right, forfeiture results in the loss of a right regardless of the defendant’s knowledge thereof and irrespective of whether the defendant intended to relinquish the right. Id. at 1100. The erroneous deprivation of a criminal defendant’s fundamental right to the assistance of counsel is per se reversible error. Id. at 1103. The fundamental right to counsel may be waived by conduct after warning but should not be subject to outright forfeiture. For these reasons, I would reverse Brickert’s conviction and remand this case for a new trial.